By Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
Partner Vaish Associates Advocates
Mobile no. +91 9810081079
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Following are the pre-requisites for a valid provisional attachment order under PMLA:-
- the existence of material ("in possession of" the enforcement officer i.e. the specified authorities under PMLA) which is the basis of the "reason for belief";
- the existence of identifiable "property" which qualifies to be treated as "proceeds of crime";
- there being the likelihood that such proceeds of crime are to be concealed or transferred or dealt with in any such manner as may result in "frustrating" the proceedings relating to its confiscation;
- the "reasons for belief" relating to such foundational material (as above) having been "recorded in writing";
- prior submission of charge-sheet (report under Section 173 Cr.P.C.) or a "complaint" in the court of cognizance respecting the "scheduled offence" to which the proceeds of crime relate unless there is "recorded in writing" the "reasons to believe" that if attachment be not ordered "immediately" the omission to do so is similarly "likely to frustrate";
- the order of provisional attachment, to be issued in writing, to be the valid maximum for one hundred eighty days from the date of such order (this excluding the period for which the order may have been stayed by the court); and
- submission of a copy of provisional order of attachment by the empowered officer to the adjudicating authority, in a sealed envelope in the manner prescribed, such submission to include "material" in possession of the officer directing such provisional attachment.
The provisional order of attachment has the outside validity of maximum one hundred eighty days and the concerned authority must take the matter to the adjudicating authority for confirmation, such submission being in the form of "complaint" under Section 5 (5) within thirty days from the date of provisional attachment, and the complaint must necessarily set out the facts on the basis of which it is made.
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